R v A1 (No. 1) - [2019] NSWSC 611

Supreme Court

New South Wales

Medium Neutral Citation: R v A1 (No. 1) [2019] NSWSC 611
Hearing dates: 22 May 2019
Date of orders: 22 May 2019
Decision date: 22 May 2019
Jurisdiction: Common Law
Before: Johnson J
Decision:
See [33] for orders.

Catchwords: CRIMINAL LAW - murder trial - application by Crown before trial for non-publication and pseudonym orders - whether orders sought necessary to protect safety of persons - “calculus of risk” approach - orders made
Legislation Cited: Court Suppression and Non-publication Orders Act 2010
Evidence (Audio and Audio Visual Links) Act 1998
Evidence Act 1995
Cases Cited: AB (A Pseudonym) v R (No. 3) [2019] NSWCCA 46
Darren Brown (a pseudonym) v R (No. 2) [2019] NSWCCA 69
R v Qaumi and Ors (AVL) [2015] NSWSC 1711
R v Ngo (2003) 57 NSWLR 55; [2003] NSWCCA 82
R v Ngo (No. 2) (2001) 124 A Crim R 151; [2001] NSWSC 339
R v Xie (No. 12) [2014] NSWSC 1980
Texts Cited: ---
Category: Procedural and other rulings
Parties: Regina (Crown)
A1 (Accused)
Representation:
Counsel:
Mr RA Herps (Crown)
Mr K Chapple SC (Accused)
Mr RJ Wilson (for C1)
Solicitors:
Director of Public Prosecutions (Crown)
Allied Lawyers (Accused)
Legal Aid NSW (for C1)

File Number(s): 2015/296084
Publication restriction: Publication of this judgment was restricted whilst the jury trial with respect to the Accused was on foot. In July 2019, the Accused was found guilty of murder. On 9 August 2019, the Court authorised the publication of this judgment subject to redactions which had been made after consultation with the parties and counsel for C1.

Judgment

JOHNSON J: By Notice of Motion filed in Court today, the Crown seeks orders under the Court Suppression and Non-publication Orders Act 2010 ("CSNO Act”) with respect to the names of various persons, including the Accused.
The Crown relies upon the affidavit of Samuel Amvrazis sworn 17 May 2019 in support of the application. Annexed to that affidavit is a statement dated 11 December 2018 of the Officer-in-Charge [name and rank redacted], and a report dated 17 January 2019 of Professor Karl Roberts.

The Crown Case

The Crown alleges that the Accused shot the deceased [number redacted] times at the deceased’s then place of residence at [location redacted] on [date redacted]. The Crown alleges that the shooting was premeditated and that the gunman lay in wait for the deceased to return home that evening and shot him as he was entering his residence at about [time redacted].
The Accused, his wife and the deceased were all immigrants from [redacted]. The deceased was [redacted]. The Accused and his wife had sponsored the deceased to come to Australia in [date redacted], in the expectation that the deceased would marry the Accused’s daughter. This did not occur. Rather, there was an altercation between the Accused and the deceased at premises in [location redacted] on [date redacted] (for which there are rival explanations) which resulted in the deceased permanently leaving that address.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v A1 (No. 1)

Details

AGLC: R v A1 (No. 1) [2019] NSWSC 611
Case: [2019] NSWSC 611
Decision Date: 22 May 2019

CaseChat Overview and Summary

The case of R v A1 (No. 1) involved a pre-trial application by the Crown in a murder trial. The Crown sought non-publication and pseudonym orders to protect the safety of certain individuals. The application was heard in a higher court, which was tasked with determining the necessity of these orders in the context of the trial. The primary concern was whether such orders were required to safeguard the safety of those involved, particularly witnesses, given the sensitive nature of the case.

The legal issues that arose in this case centred on the balance between the right to a fair trial and the need to protect the safety of individuals involved in the case. The court had to consider the "calculus of risk" approach, which involves assessing the potential risks to the safety of individuals if certain details of the case were to be published. This required a careful analysis of the facts and circumstances surrounding the case, including the potential impact of publication on the safety of witnesses and others.

The court determined that the orders sought by the Crown were necessary to protect the safety of individuals involved in the case. The court found that the risks to the safety of witnesses and others outweighed the public interest in open justice. The court considered the sensitivity of the case, the potential for harm if certain details were published, and the need to protect the safety of those involved. As a result, the court made the non-publication and pseudonym orders, allowing the trial to proceed under these conditions. The court's decision was based on a careful assessment of the risks and the need to balance these with the right to a fair trial.

The final orders made by the court included non-publication orders that restricted the publication of certain details of the case, as well as pseudonym orders that required the use of pseudonyms for the accused and other individuals involved in the case. These orders were intended to protect the safety of those involved while allowing the trial to proceed. The court's decision was based on a detailed analysis of the facts and circumstances of the case, and it reflected the need to balance the competing interests at stake in this sensitive matter.

Orders